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Vijay Kumar vs State Of U.P. And Another on 20 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 69

Case :- APPLICATION U/S 482 No. – 2633 of 2020

Applicant :- Vijay Kumar

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Ankur Agarwal,Dileep Kumar(Senior Adv.)

Counsel for Opposite Party :- G.A.,Om Narayan Pandey

Hon’ble Dinesh Kumar Singh-I,J.

Sri Om Narayan Pandey, learned Advocate has filed vakalatnama on behalf of opposite party no. 2, which is taken on record.

Heard Sri Dileep Kumar, learned Senior Advocate assisted by Sri Ankur Agarwal, learned counsel for the applicant, Sri Om Narayan Pandey, learned counsel for applicant no.2, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.

This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned summoning order dated 17.12.2019 passed by the Special Judge (POCSO)/Additional Sessions Judge, Court NO. 8, Shahjahanpur in Complaint Case NO. 87 of 2016 (Urmila vs. Vijay Kumar) under section 376, 452, 323 IPC, 3/4 POCSO Act, 3(1)(xii) SC/ST Act, P.S. Kotwali, District Shahjahanpur and also a prayer is made to stay the proceedings in this case till the disposal of this application.

Submission has been made by the learned counsel for the applicant that on 19.5.2014 an agreement to sell was written by the opposite party no.2 in favour of the accused-applicant of her house. Thereafter, she again executed second agreement to sell on 28.8.2014 in favour of another person namely, Rakesh Kumar of the same house without cancelling the first agreement and thereafter finally she executed a sale deed of the said house in favour of the accused-applicant in which, Rakesh Kumar was made a witness, in whose favour she had executed the second agreement to sell and thus chapter of sale of that house was finally closed. But subsequently she moved an application under section 156 (3) Cr.P.C. against the accused-applicant and three unknown persons stating therein that she is illiterate lady who had a house in village Hathaura Bujurg, Tehsil Sadar, District Shahjahanpur area being 113.85 sq. meters which contains five rooms, Varanda, two latrine, one bathroom, one kitchen, one stair case and a big room constructed on the first floor. An affidavit dated 19.5.2015 was given in the office of Sub Registrar, Shahjahanpur concerning sale of half portion of the said house, in favour of Vijay Kumar, accused-applicant. Since the opposite party no. 2 had developed confidence in the accused, the accused fraudulently had indulged in forgery, to get the sale deed executed of the said portion. The accused had given Rs.3,25,000/- to the opposite party no. 2 and rest of the amount was promised to be given subsequently. Subsequently, the accused started saying that he had purchased the entire house through sale deed, hence she should vacate the entire house failing which she would have to face consequences life long. When she did not vacate the house, on 28.5.2 015 at about 7.00 a.m., the accused-applicant along with Lal Mohd. @ Guddu and three others came to her house abusing her and using word indicative of her caste and after confining her in a room, they all committed rape upon her in turn and one golden chain worth Rs.55,000/- and some other articles were looted away giving threat to her life. Attention is also drawn to a compromise having been arrived at between the parties which is annexed at pages 107-109 of the paper book which was submitted before Circle Officer, Sadar, District Shahjahanapur and pursuant to that compromise, Circle Officer has recorded statement of the opposite party no. 2 which is annexed at pages 101-102 in which she has stated that she had filed a case against the accused-applicant in respect of the property purchased from her by the accused and now she was submitting an affidavit that she does not want to contest that case due to compromise and also an affidavit was being filed from the side of the children as well that they do not have any objection. It is further mentioned in the said statement that she had moved an application under section 156 (3) Cr.P.C. in Court which also she wants to be dismissed and does not want to take any legal action against the accused applicant. Further, it is mentioned that one complaint was made by her before Superintendent of Police by appearing in person concerning the molestation of her daughter by the accused-applicant, even on that, she does not want to proceed, as compromise had taken place. Attention is drawn to another application moved by the opposite party no. 2 under section 156 (3) Cr.P.C. for getting a case registered against the accused-applicant on which direction was given by the Court to register a case, FIR of which is annexed at pages 111-113, in which she has mentioned that the daughter of the opposite party no. 2 aged about 16 year was raped by the accused-applicant and on that basis a Case Crime No.1113 of 2016 under section 376, 452, 353 IPC, 3/4 POCSO Act and 3 (1) (xii) SC/ST Act was registered and the date of occurrence was mentioned as 29.2.2016 at about 8.00 A.M. The details of the said application are annexed at pages-114 of the paper book in which it has been mentioned that the opposite party no. 2 is Harijan lady, her son Guddu was working at the brick kiln of accused-applicant and sometimes the applicant used to visit her house. On 29.2.2016 at about 8.00 a.m., the applicant came to her house when the victim/her daughter was alone as the opposite party no. 2 had gone to Jahani Khera and her three sons had gone to work and in such situation finding her daughter alone, the accused-applicant committed rape upon her and also gave her threat that in case she tells about this to anyone, she would be killed. When opposite party no. 2 returned home, her daughter told about all this to the opposite party no.2. Further, it is argued that after investigation in this case, final report was submitted which is annexed at pages 121-123 of the paper book, against which protest petition was filed and upon consideration of the same, final report was rejected vide order dated 22.10.2016 by the Additional District Judge, Court No.10, Shahjahanpur, which is annexed at pages 136-137 of the paper book. It is further argued that prior to filing of the final report, the statement of the victim has been recorded under section 164 Cr.P.C. in which she had supported the prosecution version of having been raped by the accused-applicant, which is annexed at pages-142, but it is argued that despite such statement being on record, the same was found to be false and final report was submitted. The protest petition was directed to be registered by the court below as a complaint case and thereafter, after having recorded statement under section 200 and 202 Cr.P.C., summoning order has been passed against the accused-applicant by the court below on 17.12.2019 summoning the accused applicant under section 452, 323 IPC and under section POCSO Act and 3 (1) (xii) SC/ST Act, copy of the statement u/s 202 is annexed at page 144.of the paper book.

Against the said order, criminal revision was preferred by the opposite party no. 2 being Criminal Revision No.1271 of 2018 (Urmila Devi vs. State of U.P. ) in which vide order dated 15.7.2019, this Court held that on the basis of statement of the victim recorded under section 164 Cr.P.C. and in the FIR age of victim being below 16 years, the trial court failed to consider this fact and has dropped the charges against the accused-applicant under section 376 IPC and therefore the trial court was directed to reconsider the matter and pass an order afresh after going through the observations made by this Court.

Pursuant to this order, matter was considered afresh by the court below and the impugned order dated 17.12.2019 has been passed summoning the accused-applicant under sections 376, 452, 323 IPC and POCSO Act and 3 (1) (xii) SC/ST Act which has been assailed before this Court now in the present proceedings.

It is vehemently argued by the learned counsel for the applicant that earlier a false allegation of rape was made by the opposite party no. 2 against the applicant which she compromised, which is evident from the compromise which was arrived at on 19.2.2016 thereafter in order to extort money from the accused-applicant, she filed another case showing her daughter to have been raped by the accused-applicant. It is nothing but a fabricated story. No such occurrence has ever taken place and it is nothing but a malicious prosecution which needs to be quashed. The trial court has failed to take into account that the final report was submitted after thorough investigation yet on the basis of fabricated evidence, summoning order has been passed. The opposite party no. 3 is in the habit of extorting money by resorting to such filthy allegation. The applicant is innocent and the impugned order needs to be quashed.

From the side of the opposite party no. 2 attention was drawn to medical examination report of the victim which is annexed at page-127 and in the same the age of the victim is recorded to be 16 years. In the same medical examination report, hymen of the victim has been found old and torn and in the light of this report, it is argued that a minor child’s hymen has been found torn, which shows that she was raped. He lastly has drawn attention towards the statement of the victim recorded under section 164 Cr.P.C. in which the victim has given description as to how she was raped by the applicant, which has wrongly been disbelieved by the Investigating Officer in collusion with the accused-applicant in order to save him. Further it is argued that the witnesses who had been got examined in the complaint proceedings namely, the victim herself as CW1 has clearly stated that the accused-applicant and his companion entered the house and then first of all she had beaten up by them and thereafter the applicant and his companion had raped her in which her clothes had got torn and they stayed for about one hour. The other witness has been examined as Dharamvir, who has also supported the prosecution version in which he has stated that he used to work at brick kiln of the accused-applicant, who used to come to his house and has also supported the version that when he had returned home from work, he was told by her mother about this occurrence. The opposite party no. 2 herself has supported the prosecution version as given in the complaint/protest petition. Therefore, it was argued that there was sufficient evidence to summon the accused for offence under section 376 IPC as well, but the trial court had wrongly dropped the offence under section 376 IPC and had summoned him for offence under sections which are mentioned above but thereafter the opposite party no. 2 approached this Court in Criminal Revision No. 1271 of 2018 and upon the direction of this Court, which too has found that there was sufficient evidence on record to constitute offence under section 376 IPC, the impugned order has been passed which does not suffer from any infirmity because at the stage of proceedings u/s 482 Cr.P.C, the statement of the victim cannot be disbelieved without trial.

Learned A.G.A. has also hammered the point that the entire argument, which have been raised today by the learned counsel for the applicant that the applicant has been falsely implicated and that there was no evidence of offence under section 376 IPC, was made from the side of the opposite party no. 2, before the revisional court as well and this Court had come to the conclusion in the said revisional proceedings that there was evidence on record to constitute an offence under section 376 IPC and that now in the shape of filing the present application under section 482 Cr.P.C., the said order is being sought to be revised which is not permissible under law.

Having heard learned counsel for the parties, I am of the view that when a question was put to the learned counsel for the applicant as to how compromise was preferred to be filed before the Circle Officer who did not have any proceedings pending before him, no proper reply could emanate from him. Therefore, I find that in case the opposite party no. 2 wanted to enter into compromise with the accused-applicant, she could have preferred to file compromise before the court concerned which was dealing with the matter. It is also to be noted that medical examination report of the victim is suggestive of rape because hymen has been found torn and also before the court below she has reiterated her version of having been raped by the accused-applicant. It would be highly improper to disbelieve the statement of the said victim in proceedings under section 482 Cr.P.C. without full trial in this case, even if it be considered that the applicant has been falsely implicated by the mother of the victim. It would simply be guess work by this Court to arrive on a conclusion whether actually it is a fabrication or actually this occurrence had taken place, as the same can only be determined after evidence which is to be led from both the sides.

In view of the aforesaid, the application deserves to be dismissed and is accordingly dismissed.

Order Date :- 20.1.2020

AU

 

 

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